Certiorari to the United States Court of Appeals for the Ninth Circuit

Holding

Military preparedness outweighs environmental concerns, as Navy needs to train its crews to detect modern, silent submarines, and it cannot be forced to turn off its sonar when whales are spotted nearby.

In balancing military preparedness against environmental concerns, the majority came down solidly on the side of national security. Chief Justice Roberts wrote in his opinion, “the most serious possible injury would be harm to an unknown number of marine mammals that they study and observe”. By contrast, he continued, “forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet”.[2]

Contents

The U.S. Navy had scheduled 14 training exercises through January 2009 off the coast of Southern California involving the use of “mid-frequency active sonar” to detect enemy submarines. Environmentalists argued that the sonar's high decibel levels may have a deafening effect on whales. They said studies conducted around the world have shown the piercing underwater sounds cause whales to flee in panic or to dive too deeply. Whales have been found beached in Greece, the Canary Islands, and in the Bahamas after sonar was used in the area, and necropsies showed signs of internal bleeding near the ears.[3]

The majority opinion held that as an initial matter the Ninth Circuit’s “possibility” test for issuance of a preliminary injunction is too lenient; plaintiffs must show that irreparable injury is “likely” in the absence of an injunction. However, the Court continued, even if plaintiffs had shown irreparable injury (and, too, likelihood of success on the merits), it is “plainly outweighed” by the Navy’s interest in effective, realistic training of its sailors. That factor alone requires denial of the requested injunctive relief. For the plaintiffs, the most serious possible injury would be the loss of ability to observe an unknown number of marine mammals. In light of the foregoing, the Court reversed the decision below and vacated the preliminary injunction. The Court technically did not address the merits of the lawsuit—that is, whether the training exercises had violated NEPA or the other federal environmental laws.

Justice Ruth Bader Ginsburg wrote a dissent, joined by Justice David Souter, that sided with the Ninth Circuit. She found that despite the importance of the U.S. Navy’s training exercises, they did not trump the considerations of environmental harm mandated by NEPA.

A report published in 2009 by the Congressional Research Service noted that the Supreme Court accepted the case "as a challenge to a preliminary injunction, rather than to the merits of petitioners’ statutory claims". However, the report observed that "the Court made clear, however, that its perception of an overriding national security interest in the challenged training exercises should lead the district court to reject a final injunction as well, in the event the military is found to have violated an environmental statute".[6]

This was the first time the United States successfully got the judiciary to reject the Ninth Circuit’s “mere possibility” test for issuing injunctions.

Other commentators called it "a dangerous precedent" and "a troubling example of unquestioned deference to an invocation of military necessity at the expense of the environment" and said that it "signal[ed] a marked shift from lower courts’ treatment of NEPA injunctions, raising questions about the availability of restraining orders for NEPA violations in the future".[8]